What the "Hobby Lobby" decision REALLY means...

OK, to start with, as is so often said on the Internet as a disclaimer: I Am Not a Lawyer.  However, I have spent the past 33 years of my life working in the field of regulatory law, and have often been in the position of figuring out how to apply court decisions to the work of administrative agencies.  Actually, I guess that this is the first thing you need to understand about the decision:

It applies to the work of an Administrative Agency:

Specifically, the Department of Health and Human Services.  You see, the ACA specified that contraceptives needed to be covered by any approved insurance plan, but left all the details of how that was supposed to happen to HHS.

The next thing you need to understand is:

It doesn't apply to all corporations:

The decision applies specifically and only to "closely held" corporations like Hobby Lobby.  "Closely held" means that the entire corporation is under the ownership of one or a few related individuals.

It is not about contraception in general:

Hobby Lobby objects only to paying for "abortifacients" (drugs or devices that cause a miscarriage of an already-concieved zygote) and, as a result, the decision applies only to the 3 abortifacient drugs ("morning after pills") and one device (IUD) out of the list of 20 contraceptives in the ACA.

It is about a conflict between two existing laws:

It is not about a women's right to control her body, or have access to contraception, or whether a corporation is a person.  All of those are considered "settled law".

However, as is generally the case when something like this gets to teh Supreme Court, the requirements of two different laws pose a potential problem for HHS.  The decision is about the question of whether the way HHS implemented the ACA was consistent with the Religious Freedom Restoration Act of 1993.  That law requires that Government not "substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The final piece of the puzzle is:

It doesn't mean that contraception is unavailable:

As far as the Supreme Court is concerned, availability of the 20 contraceptives on the list is "in furtherance of a compelling governmental interest"!

Let me say that again, a little differently: The Supreme Court's decision affirms the importance of access to contraception.

However, the court wasn't convinced that the way HHS went about ensuring availability was "the least restrictive means of furthering that compelling governmental interest."

Essentially, HHS had the burden of proof that there was no way to implement the requirement to provide the list of 20 forms of contraception that was "less restrictive" to religious freedoms.  They failed to meet that burden.

So, what does the decision mean?

The decision means that HHS has to go back to the drawing board regarding how it handles the very narrow issue of insurance companies covering certain forms of contraception for the employees of closely held corporations, where the owners (all of the owners) of those corporations have strongly held religious convictions against those forms of contraception.

• It doesn't mean that contraception won't be covered, even for Hobby Lobby's employees.
• It doesn't mean that abortifacients won't be covered, even for Hobby Lobby's employees.

In short, all it means is that HHS has to figure out some way that Hobby Lobby and other similarly situated companies won't pick up the cost of abortifacients (those 4 specific items out of the list of 20) in their health insurance premiums.  The court even outlines a few ways that HHS could meet the requirement.

It might mean the HHS needs to have insurance companies serving closely held employers provide a separate mechanism for access to abortifacients, just as they do for some other employers.  Maybe the folks at HHS can be more creative than that, maybe not.

OK, can we go back to debating the World Cup now?